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RULE OF LAW CHALLENGES IN
GUATEMALA AND HONDURAS
Mat Tromme
Bingham Centre for the Rule of Law
Global Rule of Law Exchange Papers
November 2015
www.ruleoflawexchange.org
Opinions expressed in this paper are the author’s alone and do not necessarily
reflect those of the Bingham Centre for the Rule of Law or the Global Rule of Law
Exchange
Rule of Law Challenges in Guatemala and Honduras 1
n all countries, equal respect for everyone’s
dignity depends upon clear laws, equally
applied, with access to justice and rights and
a fair trial before independent judges. The Rule
of Law includes a number of key components,
such as legality (a system governed by laws, not
tyranny, in which public officials must act within
their given legal powers and in which
settlements of disputes must follow the law);
legal certainty (according to which the
application of the law must be predictable and
must generally not be retrospective; fair
warnings must be given about any changes in
the law); equality (the law must apply equally
against all); access to justice (disputes are
decided in a court or similar body after a fair
hearing before an impartial and independent
judge) and the respect of basic rights. Access to
justice therefore requires an independent
judiciary, as well as independent prosecutors
and lawyers.1
Corruption is unusual in that it offends all
components of the rule of law. If justice is not
impartial and independent, it can be bought by
the highest bidder, and therefore it does not
apply equally against all. Likewise, if the courts
are corrupt (e.g. because decisions of the judges
can be influenced or bought), then there is a
missed opportunity for fair trial and due
process. As well, corruption can lead to
undermining the predictability of rules, for
* Mat Tromme is Project Lead and Senior Research Fellow for the Global Rule of Law Exchange at the Bingham Centre for the Rule of Law. See at the end for more on the Exchange and the Bingham Centre. 1 Bingham, T, 2010, The Rule of Law, Allen Lane, Penguin Press; Jowell, J, The Rule of Law: A Practical and Universal Concept, in Jowell, Thomas and van Zyl Smit (Eds), Rule of Law Symposium 2014 – the Importance of the Rule of Law in Promoting Development, Bingham Centre for the Rule of Law, Singapore Academy of Law, 2015
example when vested interests attempt to exert
influence over how they are applied or to whom.
2015 is synonymous with major corruption
scandals in Guatemala and Honduras, two
countries connected by history, politics and the
economy and which share similar challenges,
such as high poverty and criminality levels.2
These high-level corruption scandals have
rocked the political establishment in both
countries. Popular pressure, together with strong
investigative and prosecutorial powers
eventually led to the impeachment of the former
President of Guatemala and his Vice-President
(Otto Pérez Molina known as ‘OPM’, and
Roxana Baldetti, respectively). It seems to have
effected change in Honduras as well.
The ousting of OPM and Ms Baldetti was done
legally. Citizens in Guatemala (and in
Honduras) took to the streets in peaceful
demonstrations. These are among the most
significant events in the transformations the
country has undergone since the end of the civil
war, which ended in 1996 and during which
student leaders and union organisers had been
gunned down or disappeared. Nevertheless, a
number of challenges remain, including the
entrenched influence of organised crime on
politics, high levels of violence, the lack of an
independent judiciary, and corruption. This
paper uses a rule of law lens to analyse both
2 According to the CIA’s Factbook, Honduran growth remains dependant on the economy of the US. The country is one of the poorest in Latin America and has the world’s highest murder rate. More than half the population lives in poverty. Guatemala is also among the most violent in the world, in part due to impunity, gang violence and the drug war. See CIA, The World Factbook Honduras, http://is.gd/IwKgGV and OSAC, Guatemala 2014 Crime and Safety Report, http://is.gd/OEcSBL ; D. Renwick, 4 Dec 2015, Central America’s Violent Northern Triangle, CFR Backgrounders, http://is.gd/MM8AGX
I
RULE OF LAW CHALLENGES IN GUATEMALA AND HONDURAS
Mat Tromme*
Rule of Law Challenges in Guatemala and Honduras 2
these corruption scandals and the challenges
lying ahead.
CORRUPTION AND THE
BREAKDOWN OF THE PEREZ
MOLINA ADMINISTRATION3
Starting in April 2015, tens of thousands of
Guatemalan protestors began taking to the
streets demanding urgent change, an end to
impunity, and the resignation and prosecution
of their political elites (they would soon be
followed by their Honduran neighbours). These
unprecedented marches were sparked – and
have subsequently been galvanised by –
revelations of graft, bribery and embezzlement
in the countries’ public procurement, social
security and customs sectors (to name but a
few). All these cases involve high-level politicians
on both sides of the border, although only in
Guatemala were the former President and his
Vice-President forced to resign (they currently sit
in prison and are facing charges).
These mass protests were formed in response to
the uncovering of a corruption scam by a UN-
backed Commission Against Impunity in
Guatemala (Comisión Internacional contra la
Impunidad en Guatemala, known by its Spanish
acronym as CICIG) together with the Public
Prosecutor or Attorney General (called the Public
Ministry or Ministerio Público) (see Box 1). They
reported that senior custom officials had taken
bribes from businessmen in return for lower
custom duties (this case was dubbed ‘The Line’
or ‘La Línea’). Official figures suggest La Línea
defrauded the state of millions of dollars4. Up to
3 The investigative magazine Contrapoder has a timeline covering most significant milestones in Guatemala since the scandals broke. See Alvarez, A, 29 Oct 2015, El Despertar ciudadano y el troezar de los políticos, Contrapoder, http://is.gd/A90joD 4 The actual amount is subject of discussion. Some figures suggest between 120 to 130 million was syphoned off, whilst the BBC reports that in the course of 2 weeks, one individual alone stole about USD 330,000. See Reynolds,
18 people – including the head of the Customs
Department – were arrested. Investigations
honed in on the role of Vice-President Baldetti’s
Chief of Staff, Mr Monzón Rojas, who stood
accused of spearheading this ring. He initially
went into hiding and pressure built around Ms
Baldetti. Congress lifted her political immunity
(which she appealed unsuccessfully), and she
was eventually forced to step down on May 7.5
Monzón Rojas eventually turned himself in early
October and was remanded in custody. He
incriminated both Baldetti and OPM as leaders
of the crime ring.
Box 1: CICIG – an overview
The United Nations and the Government of
Guatemala agreed to set up CICIG in 2006. As an
independent entity, its mandate consists in supporting
the Attorney General/Public Ministry and other
bodies such as the police in the investigation and
dismantling of “illegal security bodies and
clandestine security organisations” operating in
Guatemala. CICIG has broad investigative powers.
In addition to providing investigative and
prosecutorial support, CICIG is also tasked with
fostering capacity of the Judiciary. It can also
formulate recommendations on policies and laws to
implement in order to tackle organised crime. Its
original mandate does not include corruption.
Its mandate was renewed three times, in 2009,
2011, and most recently in early 2015.6 The United
States funds 40% of the CICIG’s budget, whilst the
remaining 60% comes from other countries.7
The release of the ‘La Línea’ report by CICIG in early
April coincided with a period of uncertainty over its
future. President Molina initially refused to extend the
L, In Guatemala, Pérez Molina claims US conspiracy behind corruption prosecution, Tico Times, http://is.gd/yC1IF4, Telesur, 27 Apr 2015, Anti-Corruption Protest Demands Guatemalan President, VP Resign, http://is.gd/f49Rqe and BBC Mundo, “La Línea”: el qué, el cómo y el por qué del escándalo de corrupción que tumbó al presidente de Guatemla, http://is.gd/myV2q9 5 This implied lifting her political immunity first (which she appealed). 6 CICIG, Mandato, Acuerdo de creación de la CICIG, http://is.gd/AE3MP5 7 See for example La Hora, 1 Dec 2015, Alemania dona 1.5 mlliones de euros a la CICIG, http://is.gd/0pUoxd
Rule of Law Challenges in Guatemala and Honduras 3
Commission’s mandate before caving in. From
prison, he would say he regretted doing this and
claimed he was forced to do so by the US. He also
claimed that CICIG operates without checks and
balances, which could in itself undermine the rule of
law.8
As pressure grew on President OPM, Congress
began discussing his involvement in La Línea. A
Congressional Committee recommended fully
lifting the President’s political immunity, and
indicated an investigation into the President
could proceed. Although the Constitutional
Court9 rejected OPM’s appeal against the
decision (much like his former Vice-President’s
appeal for leniency was overruled), in the end,
Congress voted against lifting his immunity.10
In mid-August, the head of CICIG publically
suggested it was ‘probable’ that the President
had participated in La Línea and was in fact one
of its leaders. The President began losing
support from his closest allies (including
business leaders and some in his own party)
and different factions of society such as the
church called for his resignation. CICIG and the
Public Prosecutor pressed the Supreme Court11
to call for Congress to lift the President’s
immunity, which it eventually did. This opened
the door for the President’s impeachment during
a second vote in Congress which secured a two
thirds majority.12
8 Menchu, S and Pretel, R, 25 Oct 2015, Guatemala’s Perez says Biden forced him to accept anti-corruption purge, Reuters, http://is.gd/3x4ryl; see also, Martínez Ahrens, J. 15 Dec 2015, Guatemala’s jailed ex-leader: I didn’t want any deaths just to save my skin, El País, http://is.gd/aFENre 9 The Constitutional Court (Corte de Constitucionalidad de la República de Guatemala) is the highest court in Guatemala, and is led by a Court president who is elected annually. She/he is supported by five judges (and their respective deputies) who are elected for a five-year term. 10 The motion to lift OPM’s immunity was presented by an opposition lawmaker. 11 The Supreme Court of Justice (Corte Suprema de Justicia) is composed of 13 members, appointed for five-year terms. They elect a president for a one-year term. 12 Menchu, S, 29 Aug 2015, Bid to Lift Guatemala president’s immunity advances in Congress, Reuters, http://is.gd/2hdKW5
Facing imminent investigation and arrest, the
President stepped down instead on 2 September
and presented himself in Court the next day. In
doing so, he declared he would “submit himself
to the rule of law” and face legal proceedings
against him. Both OPM and his former Vice-
President are now imprisoned and are awaiting
a full trial (OPM was formally charged in
December).13 This situation is not without a
touch of irony, as the President was elected on a
‘mano dura’ (or tough stance) mandate against
organised crime. A former Judge “from the
establishment”, Mr Maldonado Aguirre, was
originally sworn in as Vice-President in lieu of
Ms Baldetti, and then as acting President.14
The latest indicted politician is Pedro Muadi,
former President of the Congress who is accused
of embezzling state money through a
sophisticated shadow jobs system involving his
security guards, whose salaries he over-
reported.15
ANALYSIS
lthough corruption tends to have its own
idiosyncratic explanations in different
countries, it is nevertheless interesting to
highlight some of the similarities as well as the
differences in Guatemala and Honduras.
Demand for accountability and the importance
of social security institutions
In both countries, grass-roots movements have
sparked growing numbers of protests starting in
April 2015. These marches progressively gained
in intensity and momentum, and are driven by
citizens’ demand for greater justice, integrity
and transparency. In Guatemala, and to some
13 AFP, 10 Dec, Guatemala prosecutors formally accuse ex-president of graft, http://is.gd/pRwYqw 14 Cabria, E, Olmstead, G, 14 May 2015, El juez del establishment llega a Vicepresidente, Nómada, http://is.gd/swDGDV 15 Prensa Libre, Pedro Muadi guardará prisión provisional en Mariscal Zavala, 29 October 2015 http://is.gd/bAL3vI
A
Rule of Law Challenges in Guatemala and Honduras 4
extent in Honduras, demonstrations have also
bridged ethnic, class and urban/rural divides
(both indigenous groups as well as the educated
elites take active part in the demonstrations).
Marches are mainly led by youth groups and
students, but include a mix of people from all
over the country.16
Politicians are the target of the public’s ire,
which is driven by a loss of trust in institutions
and a belief that legal and illegal groups as well
as vested interests exert significant influence
over the Executive, Legislature and Judiciary.17
The fact that citizens have mobilised against
corruption in this manner is remarkable. This is
because both countries have been beset by civil
wars, rising spikes of violence (mainly between
drug gangs), corruption and military rule.
Honduras also went through a military coup in
2009 which deposed the country’s
democratically elected President (Mr Zelaya).
These protest movements have organised civil
society in a way that it can call politicians to
account. However, as will be discussed below,
the long-term impact of these protests remains
to be seen, notably because other challenges
such as the influence of organised crime on
politics must be addressed.
The second similarity across both countries
relates to the place of the Social Security
Institutions in the corruption scandals, which in
impoverished countries like Guatemala and
Honduras represent a sizeable share of the
national budget18. This is because social security
16 Internet penetration in Guatemala is reported to be of 25%, which is significant. Social Media played an important role in the protests. 17 In a recent interview, Iván Velázquez stated: “It is definitely true – and this is not a Guatemalan problem but an international one, although it is much more visible in Latin America – that certain factors – state powers and non-state powers – pressure judicial bodies so that they don't affect their interests”. See Labrador, G, 17 Nov 2015, Head of Guatemala’s CICIG reflects on Past victories, Challenges ahead, Insight Crime, http://is.gd/BhKKyd 18 Guatemala’s administration is known as the Instituto Guatemalteco de Seguridad Social, or IGSS. On average, social protection spending represents 15.7% of GDP in developing countries such as Honduras and Guatemala.
institutions draw on large procurement
packages which offer higher opportunities for
graft.
Soon after the Customs scandal erupted in
Guatemala, the authorities – drawing once
more on investigations by CICIG – arrested the
President of the Central Bank (a former chief of
staff of Perez Molina) together with the Director
of IGSS and about another dozen suspects
(including the son of a Supreme Court Justice).
This followed new allegations showing they had
embezzled approximately USD 15 million by
rigging procurement and tendering procedures
in favour of a large pharmaceutical company.
This scheme is thought to have gone on for
years. The Attorney General’s office and CICIG
also published evidence that a former
Presidential Secretary serving in the
administration of President Colom (2008-2012),
Mr Alejos, together with his acolytes, was one of
the masterminds behind what is now dubbed
‘the merchants of health’ or ‘negociantes de la
salud’.19 Alejos, who funded the campaign of
the three previous presidents (including OPM), is
still a fugitive to this day.20 The Ministry of
Health in November suggested it had uncovered
the presence of ‘shadow jobs’, and declared it
would debar a number of companies from its
procurement system.21 Finally, Congresswoman
Montenegro, who has been pushing for the
newly introduced reform to the Law on
Procurement, provided evidence that some
See, Van Stolk, C and D Tesliuc, E, 2010, Toolkit on tackling error, fraud and corruption in social protection programs, RAND Corporation 19 Gamazo, C, 28 Oct 2015, Jaque a Gustavo Alejos y los negociantes de la salud, Plaza Pública, http://is.gd/EmjFQO 20 Prensa Libre, 27 Oct 2015, Gustavo Alejos tiene arraigo y orden de captura, según MP, http://is.gd/oXLs0r and López, G, 10 Nov 2015, Los casos de corrupción que marcaron el declive en el Seguro Social, Prensa Libre, http://is.gd/UbxBr1 21 Méndez Villa, C, 11 Nov 2015, Ministerio de Salud deja de comprar medicamentos a Agefinsa, El Periódico http://is.gd/WKQaeZ See also, El Periódico, 28 Oct 2015, Así operaban los negociantes de la salud, http://is.gd/8UT0ti
Rule of Law Challenges in Guatemala and Honduras 5
goods and medicine for the social security
institution cost 8 times as much as normal.22
Similarly, in Honduras, the former director of the
Social Security Institute (Instituto Hondureño de
Seguro Social) is also accused of embezzling
around USD 300 to 350 million, while some of
his colleagues stand accused of accepting bribes
from medical companies. Under this scheme,
some services bought ambulances thousands of
dollars above price, with the surplus laundered
through to front companies.23 The National
Party and President Hernández are also alleged
to have pocketed up to USD 90 million in order
to fund the 2013 election campaign.
Hernández has admitted to taking “only a
fraction” of this money, and pledged he would
return the amount.24
Shortly after these revelations, the Honduran
Supreme Court issued arrest warrants for the
Vice President of the Congress (Ms Gutierrez)
and some of her relatives on the suspicion that a
firm they own (AstoPharma Laboratory) sold
drugs of dubious quality to government at an
inflated price. A multi-party Commission was
also established to investigate this case in the
Congress. After reviewing witness testimony and
prosecutorial evidence, the President of the
Supreme Court agreed in late September to
press charges and started proceedings against
Ms Gutierrez and her relatives.25 Mr Zelaya, the
head of the Social Security Institute who is said
to have led a lavish lifestyle, was remanded in
custody and is now awaiting trial.
These cases have had real consequences across
both sides of the border. The plundering of the
Social Security Institute’s budget in Guatemala
22Medinilla, A, 26 Nov 2015, Verdadero. Montenegro: “El Estado ha comprador productos con una sobrevaloración de hasta el 800%”, Plaza Pública, http://is.gd/J5pPBo 23 Cuevas, F, 9 Sept 2015, Honduras detains ex-official suspected of fraud, Associated Press http://is.gd/b0cZQU 24 Tico Times, 30 May 2015, Anti-corruption protests spread to Honduras with demands that President Hernández resign, http://is.gd/0ekDfw 25 Cuevas, F, 2015, Honduran judge begins formal trial for congress VP, Associated Press http://is.gd/kvtTnO
takes place at a time when the education and
health budgets are running dry. The funds that
were syphoned off were actually destined to
treat patients with kidney trouble (36 of whom
reportedly died in hospital as a result of their
lack of treatment). The ‘merchants of health’ are
alleged to have syphoned off up to USD 2.5
million of a 15 million contract.26
CICIG and the prosecution of corruption crimes
While there are similarities, there are also a
number of differences between the two
countries. First is the preeminent role of CICIG,
whose pivotal work is now hailed across the
region as an example of good practice. Working
together with the Office of the Attorney
General/Public Ministry and drawing on
investigatory techniques such as phone tapping,
the Commission has been vital in providing
robust, objective and impartial evidence of
wholesale corruption.27 In that sense,
Guatemala is a step ahead of Honduras which
lacks an independent investigative body (the
scandal there was broken by a journalist, who
has been sent to prison for defamation.28)
One of the claims of protestors in Honduras is
precisely that an independent investigative body
be set up to look into government sleaze and
prosecute corrupt officials. Although he initially
resisted the idea, President Hernández bowed to
pressure and agreed to set it up. He announced
the creation of a framework to combat impunity
and corruption (‘Sistema Integral de Combate
contra la Impunidad y la Corrupción, SICCIC in
26 García, J, 23 Sept 2015, El personaje clave de la corrupción tiene el peor nombre, Nómada http://is.gd/Tzb0qV 27 The investigative and prosecutorial techniques have come a long way under CICIG’s leadership. In the past, there was no legal procedure allowing to wire-tap suspects, nor was there a possibility for prosecutors to bargain with low-level defendants. The asset forfeiture framework was also poorly developed, meaning prosecutors could seldom use it. See Speck, M, 16 Dec 2015, A civic awakening in Guatemala, Miami Herald, http://is.gd/a4eGkq 28 Reuters, 13 Nov 2015, Condenan a periodista que denunció corrupción que salpicó a presidente de Honduras, http://is.gd/aZOH67
Rule of Law Challenges in Guatemala and Honduras 6
Spanish). This framework includes a national
dialogue with leading social and political actors.
In late September, the Organisation of
American States (OAS) issued a statement
according to which it would contribute to the
SICCIC by setting up the ‘Mission to Support the
Fight Against Corruption and Impunity in
Honduras’ (‘Misión de Apoyo contra la
Corrupción y la Impunidad en Honduras,
MACCIH). Using the Inter-American Convention
against Corruption as framework, it is originally
foreseen for the Mission to be led by a legal
expert together with a panel of judges and
prosecutors who will be tasked with supervising,
monitoring and supporting anti-corruption
institutions.29 MACCIH will also establish a
diagnostic study on the situation of the Judiciary
in Honduras and make sweeping
recommendations to foster the Judiciary.30 A
‘Justice Observatory’ will be set-up as well to
evaluate progress towards reforms.
Civil society, however, has voiced concerns
about MACCIH’s relative lack of teeth and
independence, arguing that it should be
independent and have the power to investigate
and prosecute sleaze.31 The Honduras Anti-
Corruption Party (which holds 13 out of 128
seats in Congress) presented a law formalising
the creation of MACCIH.32 The full scope of the
Mission (including the powers eventually
bestowed onto it) should be published late 2015
or early 2016. The Mission will start operating in
January, when an agreement with the OAS will
29 See OEA, Misión de Apoyo contra la Corrupción y la Impunidad en Honduras (MACCIH), http://is.gd/I3clIj and OAS, 9 No 2015, What is the MACCIH ?, http://is.gd/3sT8OK 30 This work is to be undertaken by the Justice Studies Center of the Americas in Chile 31 La Prensa, 2 Nov 2015, Indignados hodureños viajan a Estados Unidos, 2 Nov 2015, http://is.gd/tK9sA0; Graham, D, 28 Sept 2015, OAS to establish anti-corruption body in Honduras, Reuters, http://is.gd/ReoApa; La Tribuna, 9 Dec 2015, MACCIH debe tener autonomía en el combate a la corrupción, http://is.gd/7q74Ab 32 La Prensa, 24 Sept 2015, Diputados del PAC presentan ley para la Cicih, http://is.gd/fd7Nw4
be signed (this will require approval from
Congress).
In the absence of a strong prosecution, the role
of the United States in policing the region is very
apparent, particularly in Honduras.33 In early
October, the patriarch of one of the country’s
richest families – the Rosenthals – along with his
son and nephew were indicted in the United
States for laundering money for drug
traffickers.34 Yankel (the nephew), who had been
a minister for investment promotion until the
summer of 2015, was arrested in Miami.
Patriarch Jaimie heads one the biggest business
groups in the country, Grupo Continental. He is
a former vice-president of Honduras and was
presidential candidate on four occasions.35
Under the Foreign Narcotics Kingpin
Designation Act, the US froze assets of Grupo
Continental and Honduras’ banking commission
ordered the liquidation of their flagship asset – a
local bank – urging that deposits be returned to
its 220,000 clients.36 Again, this shows the real
costs of corruption, since shutting down the
Rosenthal’s businesses could leave up to eleven
thousands unemployed and could end up
costing Honduras up to three percent of GDP,
according to a recent report by a fiscal think
33 As Historian Greg Grandin noted, it would appear the United States’ support for anti-corruption movements and institutions in the ‘Northern Triangle’ is less than altruistic, however. In addition to the need for strong institutions as a way to favour a stable business environment, this could also be a way to curb mass migration towards the north, which has increased of late as a result of increasing violence levels. See Grandin, G, 2 Sept 2015, What’s Happening in Guatemala?, The Nation, http://is.gd/u72W7C 34 A political analyst who would be subsequently assassinated, claimed that most entrepreneurs in Northern Honduras laundered drug money. See Avila, J, 7 Nov 15 La captura del megaempresario hondureño empieza un terremoto, Nómada, http://is.gd/0mLnd1 35 Cuevas, F, Sherman, C, 7 Oct 2015, Powerful Honduran businessman accused of money laundering, Associated Press, http://is.gd/vIlrsH 36 BBC Mundo, 14 Oct 2015, La caída de los Rosenthal, el poderoso clan hondureño acusado de lavado de dinero y narcotráfico, http://is.gd/9xy7GT
Rule of Law Challenges in Guatemala and Honduras 7
tank.37 In addition to poverty and insecurity,
corruption is said to be an increasing push
factor for migration to the United States
(including of unaccompanied minors), so this
could have important social and demographic
implications as well.
Recently, the US has been planning for a USD 1
billion package for Central America in an
initiative known as the Alliance for Prosperity of
the Northern Triangle.38 Some of this money is
expected to be used to fight corruption, foster
good governance and beef up security,
although it will also support infrastructure and
industry, tax breaks and so on. El Salvador,
which could benefit from the Alliance for
Prosperity, is allegedly staunchly opposed to
letting in any outside influence on its domestic
politics and has resisted setting-up a
Commission (Box 2).
Box 2 – El Salvador’s fledgling anti-corruption
movement
El Salvador is different in that the political left (under
President Sánchez Cerén) has been in power since
2009. Critics suggest that parties and movements on
the right of the political spectrum – under whose
watch different corruption scandals erupted – are
trying to “hoist the banner of anti-corruption politics”,
if cynically and clumsily.39 There appears to be some
disagreement over the extent to which government
and the opposition have fostered or on the contrary
aim to scupper transparency and anti-corruption,
however.40
Whilst street mobilisation is not nearly as significant
as in neighbouring countries, the governing party of
President Sánchez Cerén – who had just years ago
vigorously opposed the idea – proposed in October
the creation of an anti-corruption commission called
37 ICEFI, quoted in Insight Crime, 11 Nov 2015, CentAm Elites Afraid of Prosecution? Don’t Bet on It, http://is.gd/IjLeYU ; see also Avila, reference number 34 38 See official statement here: http://is.gd/mg3hdu 39 Goodfriend, H, 16 Nov 2015, El Salvador’s New Anti-Corruption Crusaders, NACLA, http://is.gd/UMmHxx 40 See for example Goodfriend, H (Note 39), and Rubio-Fabián, R, 9 Nov 2015, Combate a la corrupción e impunidad en el Triángulo Norte, http://is.gd/g2jibp
the International Commission against Impunity in El
Salvador (CICIES, for its Spanish acronym),
admittedly at the suggestion of the United States. So
far, support for CICIES seems to be feeble at best.
However: “The bourgeoisie is asking for [CICIES], not
the people […] What our people want is justice, and
for the judicial system to work”41, with other civil
society organisations also calling CICIES a
smokescreen and urging the reinforcement of judicial
institutions as a priority.
Meanwhile, three former anti-mafia judges are being
prosecuted for taking bribes from organised crime in
return for a more favourable judgment. Prosecutors
also brought charges against a group of corrupt
judges, lawyers and a prosecutor who took bribes in
return for lowering sentences.42 A congressman is
currently under investigation for illicit enrichment as
well.
These different arrests and investigations are
spearheaded by an Attorney General (Mr Martinez)
who is seeking re-election. Congress is divided over
his candidacy.43
Timing of the protests and elections– out with
the old, in with the new?
The timing and potential fall-out of these
scandals merits some attention. Events in
Guatemala started unfolding as the country
went into election fever. The first round of
presidential and legislative elections took place
on 6 September 2015, with the second round
taking place on 25 October (elections in
Honduras are not due until late 2016).44 The
severity of the allegations released by CICIG in
April had led protestors to call for delaying the
elections and to ask for important electoral
reforms to be ushered in before polling day.
41 Margarita Posada, quoted in Goodfriend, H (Note 39) 42 Associated Press, 26 Nov 2015, El Salvador breaks up corruption ring of judges, lawyers, http://is.gd/uvwNz9 ; Prensa Libre, 26 Nov 2015, El Salvador desarticula red de corrupción judicial, http://is.gd/S68M8H 43 Labrador, G, 2 Dec 15, Arena, dividida, debate si Luis Martínez merece tres años más en la Fiscal¡a General, El Faro, http://is.gd/HQjTrY 44 There was a high voter turnout for the first round (about 70%), with null votes accounting for approximately 9%. The Public Ministry was flooded with reports of irregularities.
Rule of Law Challenges in Guatemala and Honduras 8
Although this did not happen, it would have
allowed Guatemala to shift from a politics of
protests to a politics of reform and deliberative
democracy, as Professor Anita Isaacs
remarked.45 One is inevitably led to consider
whether events in Guatemala would have
unfolded in the same way (especially the rapid
loss of support within the political elite towards
Baldetti and Perez Molina) had 2015 not been
election year.
The electorate’s distaste for ‘politics as usual’
seems to have been the driving factor behind
Jimmy Morales’ election to the Presidency.
Morales – a comedian46, devout evangelical and
relative political neophyte – was from the onset
seen as an ‘anti-system’ candidate (which he
identified with even though this moniker is hotly
contested) (Box 3).
Box 3: President-Elect Jimmy Morales – some
facts47
He has never held a seat in office. He ran –
unsuccessfully as mayor of a major city in
Guatemala.
His manifest was 6 pages long. Some of his main
action points include promoting health, education
and free-enterprise. He ran on the slogan ‘neither
corrupt or a thief’ and claimed to be an ‘outsider’.
His campaign budget was low compared to other
frontrunners. Admittedly, this provided him with
the advantage of not having to give in to
particular agendas or demands from funders, as
investigative newspaper Nómada remarked.
He was elected with 70% of the vote (53% turnout,
down from 72 in the first round), winning over
former first lady Sandra Morales (who faced
corruption allegations in the past).
Morales has a wafer-thin majority in Congress
(11/158 seats), and will therefore need to build
45 In Al Jazeera, 29 Aug 2015, Inside Story – can corruption be wiped out in Guatemala? http://is.gd/zDvEth 46 The election of Morales to the Presidency drew unexpected attention to a TV character he played in a movie entitled A President in a Sombrero. His character, Neto, nearly gets elected president by making vague promises before he drops out of the race. 47 BBC, Guatemalan election: Jimmy Morales elected president, 26 October 2015, http://is.gd/ryoN0n
alliances. Almost half the amount of incumbent
congressmen got re-elected, and the three
leading parties won the majority of seats (political
parties are known for having a short life span,
though).48
He has pledged to extend CICIG’s mandate until
2023 (the current mandate expires in 2017). In
addition to promising efforts to root out
corruption, he has also pledged to retain the
serving attorney general (Ms Aldana), boost
funding for the Justice system and make
government more meritocratic and transparent.
He asked CICIG to vet all candidates for top
government positions.
His party – the National Convergence Front (NCF)
– was set up by former military officers who have
publically stated their objective of preventing any
prosecution of former army officers for human
rights violations.49 Morales’ ties to the military
establishment raise questions concerning his
approach to the prosecution of former army
officers for war crimes during the civil war. Some
therefore suggest Morales is a new face for an old
guard which supported OPM, and it is unsure
whether he will really reform the status quo.50
Although his ties to the military establishment
could be one of his biggest weaknesses, Morales
has pledged not to name any army official to his
cabinet, except for Defence.
The question now is whether Morales can channel
votes into support for his political agenda.
CICIG and the Public Prosecution played an
important role in the elections. In July, they
released a damning report showing that most
parties receive illicit funding. 51 The report stated
that up to half of donations to parties come
from corruption and another quarter from
organised crime. The report further contended
48 See Isaacs, A, 5 Nov 2015, A wrong turn for Guatemalan Democracy, New York Times, http://is.gd/M6V7FL 49 Abott, J, 30 Oct 2015, Jimmy Morales, the New Face of Guatemala’s Military Old Guard, NACLA, http://is.gd/435JiV 50 Some analysts, mainly in academia and civil society think both current president Maldonado and oncoming president Morales will not. See La Hora, 25 Nov 2015, Critican falta de acción de Maldonado y Morales ante reformas del Estado, http://is.gd/BqPtuM 51 CICIG, 16 Jul, 2015, ‘El financiamiento de la politica en Guatemala’, http://is.gd/QKy8cI
Rule of Law Challenges in Guatemala and Honduras 9
that there is little transparency in party
financing, as they fail to disclose the source of
funding (political contributor anonymity
facilitates links to organised crime).
In the run-up to the elections, one of the leading
contenders who lost in the first round (Mr
Baldizón from the ‘Lider’ party), was instructed
by the Supreme Electoral Tribunal to stop his
campaign as he had spent above the authorised
threshold. He ignored this. CICIG also reported
that Mr Baldizón‘s Vice-Presidential candidate
was involved in a money-laundering scheme
when he was head of the Central Bank. The
Supreme Court followed-up on this revelation by
lifting the political immunity of Mr Baldizón’s
running mate, which is thought to have dealt his
campaign a severe blow (he was the leading
contender, but eventually came in third place in
the first round).
RULE OF LAW ASSESSMENT
he impact of the scandals currently
besetting both countries – particularly the
investigation and prosecution of serving
Guatemalan politicians – is significant. This is
the first time a sitting president’s political
immunity has been lifted by Congress in
Guatemala. That said, there is a precedent for
prosecuting former presidents for corruption.
Arnoldo Alemán of Nicaragua (1998-2002) was
prosecuted for money laundering and former
president of El Salvador, Francisco Flores
(1999-2004) is under house arrest and faces
prosecution for embezzling up to USD 15
million from Taiwanese donations to earthquake
victims. 52 In Panama, former President
Martinelli is also facing investigations for similar
corruption charges. There is also former
President Alfonso Portillo of Guatemala, who
served a jail sentence in the United States for
money laundering before returning to his home
country. Statistics suggests that of the 32 heads
52 BBC, Former El Salvador leader Francisco Flores in police custody, http://is.gd/Ck0UmC
of states in the region ruling between 1990 and
2010, 13 are behind bars in exile or under
investigation53 54.
There is no doubt that both Honduras and
Guatemala benefit from well-developed legal
frameworks. Guatemala emerged from a
military-run dictatorship in 1985, when it signed
a new Constitution enshrining the separation of
powers (it was revised in 1993). Separations of
powers are also protected by Article 4 of the
Constitution of Honduras. Therefore, one could
argue that both countries are governed by laws
and meet the basic principle of legality.
Nevertheless, there is a high level of
politicisation and discretion in how these laws
are enacted, meaning that politicians and
judges tend to interpret and implement the law
in a way that benefits them, or find loopholes in
the legislation. A case in point is Mr Baldizón’s
flaunting of electoral laws to continue
campaigning.
Human Rights
In 2013, Mr Rios Montt (a former military
dictator) was convicted of genocide and crimes
against humanity and sentenced to eighty years
in prison. Shortly after, the Guatemalan
Constitutional Court annulled the verdict (in a 3
to 2 ruling) and sent the proceedings into
chaos.55 The Court’s decision annulled the final
days of the trial (when prosecution and defence
witness were all heard, together with closing
53 Irish Times, 27 Dec 2014, Two decades of corruption at the highest level in Central America, http://is.gd/Goaskk ; Moreno León, J, I, nodate, La Respuesta de Guatemala, Elmundo.com.ve, http://is.gd/6bZ2oh 54 Most recently, former Honduran president Rafael Callejas was arrested as part of the FIFA investigations into corruption, and now sits in a US prison. A Guatemalan Judge was also arrested as part of the FIFA investigations whilst holidaying in the US. 55 This was the first time a dictator was tried locally, rather than by an international court. The Judge who ordered Rios Montt’s detention (Miguel Angel Galvez) is the same that has heard cases involving drug trafficking, murder, corruption, and who ordered former President Perez Molina to stand trial. See Perez, S, D, 16 Dec 15, Guatemala Judge Renowned for Ex-President’s Graft Case, Associated Press, http://is.gd/QHDMlV
T
Rule of Law Challenges in Guatemala and Honduras 10
arguments, the verdict and sentence). It
instructed the trial court to resume the trial, and
threatened to sack the Judges if they failed to
comply.56 In the wake of the annulment, the
Constitutional Court was branded as
obstructionist (including by one of the Judges on
the trial court), and its actions damaging to
legal and judicial certainty in Guatemala.
According to the Open Society Justice Initiatives,
the decision of the Court “raises serious
concerns about Guatemala’s willingness and
capacity to prosecute grave crimes, judicial
certainty in the country, and the protection of the
rights of the defendants and the victims […]
Issued in the shadows of explicit threats, this
unclear and irregular judgment further raises
questions about judicial independence in
Guatemala”57 A Guatemalan Court recently
ruled that, despite Rios Montt being diagnosed
with dementia, the retrial would be allowed. His
old age and condition, however, means he is
unlikely to serve his time in jail if he is
convicted.58
Many human right abuses remain unresolved in
Guatemala. As the different corruption scandals
unfolded and captured public attention, two
leading land and human right activists were
attacked, and one killed.59 CICIG, however,
seems to acknowledge the scale of the problem,
and has set-up a special unit that will consider
land grabs and corruption at the municipal
level, perhaps a first sign that corruption
investigations could also start focusing on the
role of the private sector (both domestic and
56 For a detailed account, see Open Society Justice Initiative, Nov 2013, Judging a Dictator - The Trial of Guatemala’s Rios Montt, New York, http://is.gd/qvb6yq; see also MacLean, Emi, 21 May 2013, Guatemala’s Constitutional Court Overturns Rios Montt Conviction and Sends Trial Back to April 19, International Justice Monitor, http://is.gd/D7sZf. 57 Open Society Justice Initiatives, (Note 56, pp 18) 58 Lara, J, Sánchez, G, 20 Aug 2015, Ríos Montt será procesado en juicio especial, Prensa Libre, http://is.gd/gDoHZo 59 Tico Times, 18 Sep 2015, Indigenous activist who helped close polluting Guatemala palm oil factory shot dead, http://is.gd/rz8SK1
international), rather than ‘grand corruption’
cases only60.
There is also some suspicion that the same
political elite which is now coming under the
spotlight may be complicit with some large-scale
mining projects. Attention has focused on Tahoe
Resources, whose licence to operate El Escobal
silver mine was recently judged as a violation of
due process by a court because it failed to
consult local communities. The matter is now
with the Guatemalan Constitutional Court61,
which recently ordered the suspension of
licenses for two hydroelectric projects supported
by a Spanish corporation on the same basis it
did not sufficiently consult with local
populations.62
In Honduras as well, corruption is also a
problem that indigenous people face, since they
have also been evicted from their land by
miners, loggers and agribusiness complicit with
the authorities.63 According to Global Witness,
111 people died in Honduras between 2002
and 2014 defending their land. In 2014, the
death count in Honduras was of 12 victims (4
indigenous) and in Guatemala 6 (of which 4
were indigenous). 64
60 Hernández, M, 14 Nov 2015, CICIG reitera prioridades: Corrupción en comunas, despojo de tierras y contrabando, La Hora, http://is.gd/jCCp2A As the CICIG commissioner himself recognised, however, issues affecting the indigenous population are not likely to garner as much public support as grand corruption, which could be a significant challenge for the future of human rights investigations. Labrador, G, 17 Nov 2015, Head of Guatemala’s CICIG reflects on Past victories, Challenges ahead, Insight Crime, http://is.gd/BhKKyd 61 Hufstader, C, 3 Nov 2015, Violence, and bogus charges against human rights defenders in Guatemala continue, Oxfam America, http://is.gd/4ML8h7 62 J. Abbott, 18 Nov 2015, The Power to defend Our Territory: Indigenous Communities Win Consultation Law in Guatemala, Upside Down World, http://is.gd/VKfmfH 63 Fraser, B, 18 Nov 2015, Corruption, Land takeovers threaten Indigenous Honduran, Indian Country Today, http://is.gd/iNe7Y1 64 Global Witness, How many more? 2014’s deadly environment: the killing and intimidation of environmental and land activists, with a spotlight on Honduras,
Rule of Law Challenges in Guatemala and Honduras 11
Organised crime, access to justice and equality
before the law
Organised crime in the Northern Triangle of
Guatemala, Honduras and El Salvador
represents a significant challenge for democracy
and the rule of law, and tackling it will be the
touchstone against which to measure progress.
Organised crime rings – which include among
others former members of the military and
active members of the police – battle each other
for territory, ramping up violence levels in both
countries. Their mainstay includes drug
trafficking, as well as human trafficking,
assassinations, kidnapping, extortion and
money laundering.65 According to Miller a lot of
Honduras’ ills stem from the trans-national
nature of organised crime.66 The country has
become a veritable staging post for illicit drugs
traveling northbound. High levels of violence
and corruption have forced many people into
mass migration, and the government has
responded with a heavy hand, mainly by
militarising law enforcement (which has
contributed to undermining an already fragile
human rights situation).67 Impunity levels in
Guatemala and Honduras still run high, since
around 97 to 98 percent of crimes go
unpunished.68
Organised crime groups work closely with
different government entities at the central or
local level that facilitate their business, “but [they
are] not interested in controlling or overthrowing
the state apparatus, which serves them by being
65 High criminality levels are compounded by a long-seeded record of inequalities between rich and poor, the inadequacy of Government’s response to these challenges, and important poverty levels. 66 Miller, A, 1 Oct 2015, Why is Honduras so violent? Brookings Institute, http://is.gd/SRvJfV 67 Pretel, E.A, Stargardter, G, 9 Jul 2015, Military helps cut murder rate, but abuses spike, Reuters, http://is.gd/4hTilI 68 See UNODC, UNODC enters partnership to address organized crime in Guatemala, http://is.gd/Nu6uKI ; Refworld, Guatemala: Violence perpetrated by criminal gang and cases of popular justice; protection offered by the state (2008-March 2012), http://is.gd/XY2Ep1 ; La Prensa, 12 Jun 2015, Preocupa a sociedad civil impunidad del 96% en homicidios, http://is.gd/qrXdFK
weak and beholden to their interest”.69 Illicit
networks sometimes provide public services to
conceal their business dealings and have
become adept at co-opting the Guatemalan
and Honduran States from within and without.
They have set-up their own shell companies to
bid for public contracts, co-opt politicians and
launder money.70 Investigative reporter Michael
Deibert also shows the deep links between crime
and politics as he describes how laundered
money from drug traffickers was also used to
fund political campaigns.71
The impeachment and subsequent prosecution
of Ms Baldetti and OPM shows that nobody is
above the law, and that the long arm of justice
can eventually reach those who were historically
deemed untouchable. However, the extent to
which organised crime has infiltrated politics
also accounts for the difficulties in establishing a
fair and objective judiciary, and undermines the
principles of equality before the law and access
to justice. In 2012, CICIG uncovered a network
of corrupt judges who colluded with vested
interests (including organised crime). 72 The fact
that Vice President’s Baldetti Chief of Staff was
able to flee the country several days before the
CICIG report was published suggests he was
tipped off in some way, and also shows the level
of political cover most high level officials benefit
from. Another, perhaps more telling example, is
that lawyers acting on behalf of defendants in
relation to La Línea were allegedly bribing
Supreme Court Justice Ms Blanca Stalling, and
69 Insight Crime, Country Profile: Guatemala. http://is.gd/Z05Tw1 70 El Periódico, 27 July 2015, Empresas de miembro de la red Moreno lavaron dinero con ‘Chico Dolar’ http://is.gd/VKQiPO. For a case study of how organised crime co-opts politicians and uses corrupt business dealings, see Dardón, J and Calderón, C, Case study on the network of López Villatoro, the ‘tennis show king’, in Briscoe, I et al (Eds), 2014, Illicit Networks and Politics in Latin America, International IDEA, Netherlands Institute of Multiparty Democracy, Clingendael 71 Diebert, M, 9 Dec 13, Has Guatemala’s Long-Awaited Spring Finally Arrived ? http://is.gd/9016U4 72 CICIG, 29 Nov 2012, Comunicado de Prensa 093, Entregan Informe Jueces de la Impunidad, http://is.gd/XdjnJQ
Rule of Law Challenges in Guatemala and Honduras 12
her sister in law, Ms Sierra de Stalling (also a
high-court Judge), in return for reducing
sentences.73 Investigative journal Nómada
suggests Blanca Stalling is one of the most
influential judges of the Supreme Court, and
was the judge of choice for both former Vice-
President Baldetti and former President OPM.
Her son and sister in law are being investigated
by CICIG (the former due to his role in ‘the
merchants of health’). She also heads the Penal
Court, which means she yields significant
power.74 Some members of the judiciary and
civil society asked for her resignation, claiming
her proximity to the defendants and her role in
the judiciary would bias the proceedings. She
took leave of absence for three months instead,
and was recently confirmed as President of the
Penal Chamber of the Supreme Court.75
Sierra de Stalling and two other judges were
arrested on corruption charges in September.
This followed the Supreme Court’s lifting of her
political immunity after authorities accused her
of extorting money in return for freeing La Línea
defendants. The other judges were arrested in
connection with other cases, including kickbacks
from companies in return for favourable
judgments to them.76 Sierra de Stalling was
released under house arrest early October but
the authorities have now gathered enough
evidence to charge her for malfeasance and
corruption.77
A 2011 study by Guatemala’s Acción
Ciudadana (Transparency International’s local
73 Both the Stallings were elected to the Supreme Court by the ruling party of OPM, in an alliance with its arch enemy, the Lider party. 74 Nómada, Los 30 que Cuentan, http://is.gd/CIsNWX 75 Palacios, C, 20 Aug 2015, CSJ confirma a Stalling como presidenta de la Cámara Penal, La Hora http://is.gd/MDFxK3 76Gámez, D, 22 Sep 2015, #LoQueSabemos: Capturan a juezas Marta Sierra de Stalling, Jisela Reinoso y al magistrado Erick Santiago de León, DiarioDigital http://is.gd/1auRWY 77 Ramos, J, Lara, J, 27 Oct 2015, Juez deja en libertad a Marta Sierra, Prensa Libre, http://is.gd/zp28XG ; Insight Crime, 9 Dec 15, Judge in Guatemala Corruption Case Charged with Taking Bribes, http://is.gd/yXZLTN
chapter) and Global Integrity raised a number
of corruption red flags in the judiciary, including
the lack of asset disclosure mechanisms and the
absence of effective mechanisms to detect and
sanction conflicts of interests. 78 The appointment
and independence of judges is another high-risk
area, which also succumbs to the influence of
organised crime.
Even though CICIG and Public Prosecutors have
pursued organised crime, in the words of the
International Crisis Group: “much remains to be
done to sever politics from crime. Prosecutors
must still work to dismantle illegal structures.
Trials must be open, with full respect for
defendants’ rights. Those demanding justice in
the streets need to be ready to accept both guilty
and not-guilty verdicts. The elections must be
free and fair, so that the results are widely
respected. While it is remarkable that the
business community and civil organisations are
working side by side, they will need to
incorporate internal reforms to prove that their
intentions are for the greater good of
Guatemalan society”.79
Appointment of Judges
In Guatemala, judges are appointed to the
Supreme Courts and Court of Appeals (or
appellate courts) for five years. This process is
managed by two Judicial Appointment
Committees (Comisión de Postulación), one each
for the Supreme Court and the Court of
Appeals, each comprising 34 commissioners.
The Appointment Committees shortlist
candidates before submitting them to the
Congress for approval. In principle, there are
strong laws meant to ensure independence of
Committee members. Deans of Law Schools
and University Directors are represented in the
Committee, as well as the Country’s Law
78 Acción Ciudadana and Global Integrity, 2011, Indicadores de transparencia en el sector Judicial en Guatemala, Enero 79 International Crisis Group, 31 Aug 2015, Political Turmoil in Guatemala: Opportunities and Risks, http://is.gd/HIWvLN
Rule of Law Challenges in Guatemala and Honduras 13
Society. Together, Deans of Law Schools and
the Law Society hold a significant number of
seats in both Committees and therefore yield
significant influence. Each have 12 seats (out of
34), whereas representatives of the Supreme
Court have 11 seats, and the University Director,
who acts as president in both Committees, holds
one seat.80 For these reasons, appointments to
the Committee have become subject to political
in-fighting, which blatantly undermines the
initial objective of using committees to ensure a
de-politicised process81.
In 2014, Judge Claudia Escobar resigned just
days after being appointed for a second term to
the Appellate Court, blaming a nomination
process fraught with problems that undermines
judicial independence. Among other things, she
complained about the lack of transparency and
meritocracy.82 She also presented a video to the
authority demonstrating attempts by a
parliamentarian of Perez Molina’s party to bribe
her.83 The UN called for the nomination process
to run again.84 The Constitutional Court of
Guatemala initially suspended the two selection
processes after civil society groups lodged
appeals for nullification on the basis that the
selection process contained irregularities. Some
commission members were found to be
candidates in one of the selection processes,
80 Judge Escobar, who would later resign from the Appellate Court, claimed that phony universities with no students were set-up for the single purpose of influencing the nomination procedure. Escobar, 7 Oct 2014, Interview with Especiales de Canal Antigua 81 Dudley, S, 18 Sept 2014, La Justicia y la creación de un Estado Mafioso en Guatemala, Insight Crime, http://is.gd/TVWgv8; For a discussion of how illicit crime aims to influence appointments, see also Jorge Dardón and Christian Calderón, (Note 70) 82 Escobar, 7 Oct 2014, Interview with Especiales de Canal Antigua. By her reckoning, only a handful of judges who were appointed had the appropriate background for the job. 83 The day before her resignation, the Appellate Court in which Escobar served overturned a verdict from the electoral authority according to which Vice-President Baldetti could not be leader of her political party and Vice-President at the same time. 84 Emisoras Unidas, 7 Oct 2014, ONU exhorta a Guatemala a que considere repetir elección de jueces, http://is.gd/TQaHlv
and although a Constitutional Court judgment
ruled that commissions should rigorously
interview candidates, apply objective criteria and
explain their votes, the commission only partially
adhered to this requirement. Eventually, the
Constitutional Court rejected all appeals in
November 2014, and the newly elected judges
were cleared to take their seats.85
The appointment process in Honduras – where
elections to the Supreme Court are scheduled
for January 2016 – is very similar. Congress
elects 15 judges for a duration of 7 years
(renewable once), based on a list of a minimum
of 45 candidates put forward by an Nomination
Committee. As in Guatemala, the Committee is
meant to be representative of society, and
includes members of the Supreme Court,
unions, the private sector, civil society, the
Human Rights Commissioner (Comisionado
Nacional de Derechos Humanos), the local bar
association, and representatives from the
leading law faculties. Each organisation presents
a maximum of 20 candidates who are submitted
to the Nomination Committee.86 Intelligence
agencies also screen the final candidates, who
have to take a polygraph test and answer
questions regarding past activities and clients.
The nomination process faces a number of
challenges, however. Forty of the 197
candidates allegedly have links with organised
crime, according to newspaper El Heraldo, and
the United States is investigating candidates as
well. 87 A mission of the International
Commission of Jurists recently criticised
Honduras for the lack of transparency
surrounding the nomination and elections of
candidates. Just as in Guatemala, the
85 The same Constitutional Court also played a role in ruling that the term of former Attorney General Claudia Paz y Paz should come to a premature end. Some suggest this was retribution for her role in leading the prosecution for genocide against the former general, Mr Rios Montt 86 Due process of Law Foundation et al, Organizaciones internacionales observarán elección judicial en Honduras, http://is.gd/cYDlse 87 El Heraldo, 19 Nov 2015, En EE UU indagan a 40 aspirantes a magistrados, http://is.gd/uatCYU
Rule of Law Challenges in Guatemala and Honduras 14
International Commission identified the risk of
capture of the election process by criminal
structures and political parties. Further criticisms
were raised. Not least among them were
concerns about the short time span associated
with the process and the limited oversight role of
Congress, especially given that the Nomination
Committee is set to present its shortlist to
Congress on 23 January 2016, for a vote on the
final candidates two days later.88 A cousin of
President Hernández, Reinaldo Antonio
Hernández Soto, was apparently put forward as
one of the twenty nominees by academic
organisations.89
Examples of interference with judicial
independence can also be found in Honduras.
In 2012, Mr Hernández, who supported the
2009 coup and was president of the Congress
at that time, convened Congress in the middle
of the night to depose three members of the
Supreme Court. Their successors (more loyal to
him) were appointed the next day.90 Congress
also passed legislation making it easier for it to
remove justices and the attorney general.91 In
April of 2015, the same Supreme Court lifted a
constitutional ban on one-term presidential
mandates, paving the way for Mr Hernández to
run in 2017 (only one Judge from the
opposition voted against it).92 In November of
2015, the Inter-American Court of Human
Rights – to which the three laid-off judges
appealed – ruled in favour of the judges. It
88 La Prensa, 30 Oct 2015, Juristas critican falta de voluntad en elección de magistrados de Honduras, http://is.gd/3N8Ony ; La Prensa, 5 Aug 2015, Así se eligen los magistrados de la Corte Suprema de Justicia, http://is.gd/vc4Oqf 89 Honduprensa, 26 Aug 2015, Primo del Presidente de Honduras nominado a magistrado de Cote Suprema, http://is.gd/5z0DG5 90 Some analysts argued that Hernandez supported this overthrow because the Supreme Court Justices had previously put on hold projects to create autonomous Social Economic Investment Zones. 91 Human Rights Watch, World Report 2014: Honduras, Events of 2013, http://is.gd/VovMwD 92 Allegedly, the 2009 coup against Mr Zelaya was masterminded as the latter was said to be preparing a referendum that would allow Presidential re-election.
argued that the individuals acted “in defence of
democracy” and noted that “members of the
Judiciary, who are citizens of a society, may
have a moral duty to take a stance”. In
challenging democratic conditions, the Court
claimed, the norms that normally restrict a
Judge’s right to political participation may not
hold. The Court also remarked that due process
was not followed (among other things, it
highlighted the lack of impartiality of the
Supreme Court in the sacking of the Judges). 93
Challenges for the Judiciary
Be it in Guatemala or Honduras, a career as a
judge, lawyer and/or official who attempt to
undertake their jobs professionally is not for the
fainthearted. Threats, harassments, attacks and
even lynching are regular occurrences. The
Honduran Prosecutor in charge of the social
security case received 36 threats and was forced
in exile in Paris, where he was eventually given a
diplomatic post. The lawyer acting on behalf of
the Vice-President of the Honduran Congress
(Ms Gutierrez) and her family was murdered in
September (he allegedly aspired to a position in
the Supreme Court). Claiming he was acting for
the greater good of the people, his assailant
also justified his attack on the basis that the
lawyer was defending people that were running
the country to the ground (this is a blatant
violation of the right to a fair trial).94 Data
suggests that 64 legal professionals – including
judges – have lost their lives from 2010 to 2013
in Honduras.95
Even when Judges are conscientious, they face a
number of technical constraints. Honduran
prosecutors are in short supply and have poor
training, according to the Association for a More
93 Corte InterAmericana de Derechos Humanos, Caso López Lone y Otros vs. Honduras, Sentencia de 5 de Octubre 2015, paragraphs 171-174, pp 58-60, http://is.gd/mMfiEK 94La Prensa, 17 Sep 2015, Confesión de Rigoberto Paredes sobre crímen de abogado Montes, http://is.gd/IGuT76 95 OAS, 30 Jul 2013, IACHR Condemns Murder of Judge in Honduras, http://is.gd/awLNX9
Rule of Law Challenges in Guatemala and Honduras 15
Just Society. Illustrating the hardship some
judges face, the Association is said to have
donated hard drives to the public prosecutor’s
office investigating corruption in the social
security institution.96 In Guatemala, CICIG has
played a key role in raising capacity of key
organisations, such as the Attorney’s General
Office, which now knows how to draw on
forensic evidence rather than testimonies to
build a case, and has a large team at its
disposal.97
The key role of other institutions
Looking back, most international reviews
welcome developments in Guatemala as a
positive sign, and paint it as an example for the
region to follow. Civil society throughout the
continent has called for many similar bodies to
CICIG to investigate graft and crimes. Although
one should guard against early celebrations,
there may be some glimmers of hope among
the many challenges. Even though corruption in
the Judiciary is engrained, judges and
prosecutors in Guatemala have shown some
willingness to follow-up on CICIG investigations
and prosecute graft. For example, although the
current Attorney General (Ms Thelma Aldana)
was appointed by OPM, this does not seem to
have stopped her from prosecuting him. 98
Another example is Judge Galvez who oversaw
the Rios Montt case and is currently presiding
over the Perez Molina one. In a recent interview,
Judge Galvez, who some now label as the
‘honorable judge’, declared that “Justice (in
Guatemala) has advanced. Today there is more
prestige, better investigation [and reiterated his
faith] that with all these cases the institutions are
going to improve because society is finally
getting involved”.99
96 The New York Times, 10 Dec 2015, In Honduras Chaos, a Man’s Killing Tells a Nation’s Story, http://is.gd/4hDZut 97 New laws also allow witnesses to be rewarded for collaborating. 98 Perez Molina himself appeared surprised that she ‘turned’ against him. See Martínez Ahrens, J. (Note 8) 99 Quoted in Associated Press. See Perez D, S (Note 55)
The Constitutional Court has also played an
important role in how events are unfolding. For
example, as Ms Baldetti became embroiled in La
Línea, she appealed to the Constitutional Court
against the lifting of her political immunity,
though her appeal was rejected. This is
significant, because a majority of the Court’s
appointees were nominated by Congress, itself
dominated by the two leading parties, including
that of the former Presidential duo. But although
events suggest the Court is willing to step up
and act independently from politics, a more
cynical analysis cannot be excluded, as it could
be said that the Court was pushed to refuse
Baldetti’s appeal and used her as a sacrificial
lamb to diffuse the situation at the time.
CONCLUSIONS
he people of Guatemala and Honduras
have played a key role in demanding
justice, and they should be careful in
letting their guard down – demanding
accountability the way the Guatemalan people
has been doing over the past few months must
be sustained.100 Pressure should also be
maintained to modify the electoral system and
introduce measures that foster transparency,
including tougher money laundering laws. The
current scandals – the most important of
Guatemala’s history – sparked a real ‘social
awakening’, set a precedent and provide a
small window of opportunity to achieve change.
In addition, there is a chance to build on this to
more seriously eliminate the influence of
organised crime and other types of corruption.
As already alluded to above, a key issue for the
coming Morales administration will be how it
100 The main civil society movement, #JusticiaYa or #JusticeNow has already called for a mass movement early January 2016 (when Jimmy Morales is to be sworn in), admittedly to demonstrate the citizenry will remain vigilant.
T
Rule of Law Challenges in Guatemala and Honduras 16
deals with trials and investigations into human
rights violations as well.101
Recently, the Guatemalan Congress has been
debating and voting amendments to different
laws, although this is expected to be a drawn
out process as some have been stalled and/or
face significant hurdles. Among the more
important ones are a Procurement Law which
was approved in late November102; a Public
Sector Reform Law103, the Law on the Judicial
Profession (“Ley de la Carerra Judicial”)104 and a
1985 Law on Elections and funding of Political
Parties (“Ley Electoral y de Partidos Políticos”)105.
Reform to the latter would limit re-election of
congressmen and mayors to two terms only,
and would limit opportunities for candidates to
defect from one party to another, a practice that
is common in Guatemala and which
encourages pork, personalised politics, and
corruption.106 It would also bring more
transparency to party funding. The Law is
currently stalled in the Constitutional Court,
however.
But to a large extent, the success of these
reforms will also depend on Jimmy Morales,
and for reasons outlined in this paper, the path
ahead still hides many unknowns. Morales will
inherit a feeble political majority and take the
helm of a heavily indebted country. Improving
security and justice will require vast amounts of
money, though fiscal pressure on the State is
significant in a number of ways, not least
because Guatemala has one of the world’s
101 As a former general, OPM has also been incriminated for human rights violations during the civil war. 102 Barreto, B, 15 Nov 2015, Ley de Contrataciones, una reforma parcial, Plaza Pública, http://is.gd/3CM4vy 103 See the Draft Law here http://bit.ly/1kZ1w3P 104 See the Draft Law here http://bit.ly/1QGwxWS 105 See for example, Ortiz, G, 31 Oct 2015, Mijangos: “Tenemos un débil Sistema de partidos políticos”, La Hora http://is.gd/bNoAJw. The Law can be accessed here: http://is.gd/iUlvKg 106 For a thorough analysis of Guatemala’s party system, see Hernández, O.J, 25 Oct 2015, Guatemala o la herencia de un Sistema colapsado, Confidencial http://is.gd/CHibpn
lowest levels of tax collection107. For example,
improving the police, overcrowded prisons108
and the court systems would cost an estimated
USD 1.38 billion by 2023, according to a
recently released report, when in fact insecurity
is estimated to have cost Guatemala USD 6.7
billion in 2012 alone.109 In 2013, Guatemala
spent 1.6 percent of its GDP on security and
public order, among the lowest figures in
Central America. Meanwhile, the Attorney’s
General Office is said to have received only 95
of the 143 million dollars approved by Congress
for 2015.110 The recently approved budget for
2016 earmarks less funds for health compared
to 2015, and does not provide enough funds to
fight corruption.111 CICIG, supported by the
United Nations, has therefore suggested levying
a new anti-crime tax to try and beef up budget
for security and justice and thus maintain the
anti-corruption momentum.112
It is clear also that these reforms and changes
will take time. For this to happen, respect and
belief in democratic institutions, as well as
upholding the laws, is required. As Iván
Velásquez, the CICIG Commissioner recently
declared: “What began as a crusade against
corruption must not only affect organised crime,
but it must also seek to establish a culture of
107 Hyde, D, 13 May 2015, In Guatemala, better tax collection means better education and better jobs, MCC, http://is.gd/6dvB5o 108 Prison population in Guatemala is said to be of 191%, and pre-trial detentions are high, at 48%. See Hernández, M, 7 Dec 15, 48% de presos aún está sin juicio, Prensa Libre, http://is.gd/wNNwHX 109 Yagoub, M, 12 Nov 2015 Where’s the Money for Guatemala’s Proposed Security Reforms, Insight Crime http://is.gd/IOH163; Pachico, E, 11 Jul 2013, Insecurity Cost Guatemala $6.7 Billion Last Year, Insight Crime, http://is.gd/FjSVZQ 110 Yagoub, M (Note 109) 111 Olmstead, G, 4 Dec 2015, Cinco razones por las que el primer año de Jimmy será de crisis (por el presupuesto), Nómada, http://is.gd/cuUP0b 112 Associated Press, 10 Nov 2015, Proposal for anti-crime tax sparks debate in Guatemala, http://is.gd/pInKnC ; Rodríguez, M, 18 Nov 2015, ONU apoya debate de impuesto para la justicia, La Hora, http://is.gd/4un0Nz
Rule of Law Challenges in Guatemala and Honduras 17
legality in society”.113 Anticipating the challenges
ahead, Morales, who appears intent on tackling
corruption and reforming the country, has not
ruled out calling for a Constituent Assembly in
case he does not find the appropriate support in
Congress to push them through.114
In Honduras, in addition to the role the OAS-
backed anti-corruption mission (MACCIH) will
eventually play and the significance of the
Rosenthal case for the future of the anti-
corruption movement, the 2014 ‘Law of Secrets’
has been at the centre of some controversies.
Anti-corruption advocates claim it limits the
opportunity for and scope of anti-corruption
investigations.115 On the one hand, authorities
claim the law can be helpful in uncovering
corrupt networks, as was recently the case when
tapped telephone conversations lifted the lid on
two corrupt judges in Honduras.116 Regardless,
civil society there also seems intent on bringing
in change.
Whether this will lead to removing the ruling
political elite remains to be seen, as does the
overall impact of these anti-corruption
movements on the ‘northern triangle’ and
Central America as a whole.
113 Quoted in Ortiz, G, 24 Oct 2015, Los 10 aspectos que definen un Nuevo rumbo para Guatemala, La Hora, http://is.gd/guAhty 114 Mitchell, R, Cameron, M, Oct 8 2015, Oligarchy in Retreat: Guatemala’s Election, Council on Hemispheric Affairs, http://is.gd/HsRJds 115 Elheraldo, 8 Nov 2015, Honduras : Ley de secretos es un obstáculo para la investigación, http://bit.ly/1PkNMxv 116 La Prensa, 14 Nov 2015, JOH: Ley de Escuchas es beneficio para Honduras, http://is.gd/9CIeio
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Citation: This document should be cited as: Tromme, M, Rule of Law Challenges in Guatemala and
Honduras, Bingham Centre for the Rule of Law, BIICL, London, December 2015.
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